All it means is that the definition of genocide has been watered down to the point that it applies in nearly every war
Charges that Israel is committing genocide in Gaza come fast and furious from politicians, demonstrators, and unfortunately even human rights groups. Obviously, this upsets those of us who believe that this war is fundamentally about Israel defending itself against the atrocities of October 7th. This accusation against Israel is so far from how we understand reality we may even see it as antisemitic. If not for prejudice and blind hatred against the Jewish state, how could anyone confuse a war of self-defense necessitated by a murderous rampage that left over a thousand dead with a campaign of aggression to wipe out a neighboring population? It’s one thing to question whether Israel is doing enough to avoid harming civilians. But that Israel is not trying to wipe out the population of Gaza is plain to see.
My purpose here is to help understand where this genocide accusation comes from so we are better able to cope with it. The reality is that the term ‘genocide’ as used in international law has been watered down so much that by now it can be applied in nearly any armed conflict. In fact, the way the term is used currently in international law it’s even possible to make a legal argument that Israel’s actions amount to genocide too.
When we hear genocide, we think of the Nazis, and may imagine Israel being accused of such. But that is not the only thing the legal term ‘genocide’ means.
The legal case that Israel is committing genocide has two steps. First, one has to believe that Israel’s military actions in Gaza are disproportionate to its legitimate defense needs.
Since proportionality is inherently subjective, this isn’t a heavy lift. Of course, one can argue that the October 7th massacre and abduction of hundreds of hostages justifies everything Israel is doing, if not more. I’m sure that’s the perspective of many Israelis. But one can also look at the Gaza death toll and immense destruction and say that Israel should be conducting a more carefully targeted military campaign that focuses more tightly on Hamas with less damage to civilians and infrastructure.
Proportionality is crucial, because an attack that is disproportionate is then no longer viewed as a response to a provocation but rather an independent act of aggression using the provocation as a pretext. And that’s what people making accusations against Israel are saying- Israel’s use of force goes beyond its self- defense needs, using the Oct. 7th massacre as a pretext to use unneeded military force as well.
Now even if someone agrees with that, there would seem to still be a vast difference between an overly strong or insufficiently targeted military response to the October 7th massacres and genocide. After all, while many thousands of Gaza residents have been killed, this is very, very far from destroying the whole population. If Israel had wanted to kill everyone in Gaza, it certainly could have caused vastly more casualties than it has.
The Rome Statute
But the legal definition of genocide may be a bit of a surprise. Genocide is one of the four crimes under the jurisdiction of the International Criminal Court. In the Rome Statute, that court’s founding document, this is how genocide is defined:
Article 6, Genocide: For the purpose of this Statute, “genocide” means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.
Note the opening sentence, which states that genocide is an act committed with intent to destroy in whole or in part. This may at first be surprising- after all, we commonly associate the term genocide with attempting to completely wipe out a national, ethnic, racial, or religious group.
But if genocide was legally defined like that, no act no matter how heinous would ever meet the criteria. Even the Nazis would get off because they weren’t killing every single Jew on earth, just the ones in Europe. Since there were still some living on other continents, the Nazis could say they weren’t destroying them all. Other countries would say the same- we’re not trying to wipe out all of the ethnic or religious group we don’t like, just the members of that group residing inside our borders. Others living in faraway places are safe there, so genocide shouldn’t apply.
Obviously, this is not what the drafters of the Rome Statute wanted. An attempt to eliminate the members of a religious or ethnic group in even just one country or location must be prevented. Since it’s impossible to determine how many or what percent of a group have to be destroyed to reach the threshold of genocide, treaty drafters settled on the ambiguous term ‘part’.
But this means that genocide legally has no lower limit. The killing of a small number of individual members of a group by an angry citizen, such as we’ve unfortunately become accustomed with mass shootings and the like, would be just a regular crime (likely a hate crime), but not genocide. But in the context of military activity, there is no clear boundary as to what is genocide and what is not.
Are Israel’s actions in Gaza causing death, body, or mental harm to a significant portion of Palestinians? Someone could reasonably say yes. So that becomes the accusation- In the wake of the Oct. 7th massacres, Israel is carrying out military actions not strictly proportionate to its needs for self-defense that are causing death, physical, or mental harm to a significant portion of the Palestinian population of Gaza. This meets the internationally accepted definition of genocide as codified in the Rome Statute and other treaties.
How to Respond?
So what does Israel say back? I’d suggest that arguing that this genocide accusation is wrong or anti-semitic is futile, since the reality is that, as I just explained, they have legal grounds to rely on.
There are, however, two important points to make. First, to make clear that accusing Israel of genocide is at least in the legal sense not saying that Israel is trying to wipe out the Palestinians or carry out Nazi like atrocities. Anyone who insists on that is either pathetically misinformed or truly is an antisemite. The genocide accusation against Israel is just a particularly hurtful and provocative way of alleging that Israel’s military campaign is harming civilians too much. Rephrasing the issue in less incendiary language may make it at least possible to discuss.
Second, say what you want about Israel, Hamas is guilty of genocide beyond a shadow of a doubt. Its stated goal is to destroy all of Israel. The Oct. 7th massacre can be understood to meet the legal definition of genocide in the Rome statute quoted above. And those who self-righteously call for Palestine to be free ‘from the river to the sea’ are quite possibly advocating genocide also. So those who lob this accusation at Israel are hardly standing on some sort of moral high ground.
The legal definition of genocide has become so watered down it’s nearly impossible to imagine an armed conflict in which genocide isn’t alleged by at least one side, if not both. Arguing about what does or doesn’t meet the legal definition of genocide is fruitless, highly charged name charging which gets us nowhere. We need to steer discussion back to the substantive question of what actions are in keeping with a vision of long-term peace. Dropping the name calling in favor of discussion that leads to mutual understanding and problem solving is the only way to make sure that genocide doesn’t actually occur.
Photo by Taylor Brandon on Unsplash
This post was also published for the Times of Israel.